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Class. L- 4? Q 



SPEECH ^ 



HON. EGBERT MALLORY, 



OF KENTUCKY, 



CONFISCATION OF PKOPERTT. 



DELIVERED IN THE HOUSE OF KEPRESENTATIVES, MAY 21, 1862. 



The bills to confiscate the property and free from servitu<le the slaves of rebels 
being under consideration, Mr. MALLORY addressed the House as follows : 

Mr. Speaker : I dislike very much to trespass upon the attention of the 
House at so late an hour of the session, and would not do so were it not 
that my connection with the committee to which this whole subject of 
confiscation was referred, renders it necessary that I should, at some time, 
present before this body my convictions in regard to this great and excit- 
ing question. 

In the few remarks I intend to submit— I shall be very brief— I will not 
undertake to follow the argument indulged in by the gentleman from New 
York who has recei^tly occupied the floor, [Mr. Lansing.] From the scope 
and tenor of that gentleman's speech,! take it for granted he belongs to a 
party in this House which is very limited in its numbers. He has an- 
nounced his solemn conviction that this war must and ought to be- waged 
against the rebels of the South for the extermination of the institution of 
slavery. 

Mr. Lansing. Allow me to correct the gentleman. That is not the 
position I laid down. I laid down the positioi^ that we should emancipate 
the slaves of the rebels as a means of prosecuting this war. 

Mr. Mallurt. I understood the gentleman to assert distinctly the pro- 
position that under the Constitution of the United States, in the reduction 
of this wonton, unprovoked, and wicked rebellion, this Government had the 
right to resort to any and every means which it might think necessary to 
secure that end. I understood that to be the position which the gentle- 
man assumed, and the whole scope and line of his argument appeared to 
be intended to try to prove that slavery had brought on this war ; that 
there never can be permanent peace in this country as long as that insti- 
tution exists, and that if the Government of the United States should come 
to that conclusion, it possessed and ought to exercise the power to exter- 
minate slavery. 



i--^" 



I believe, at least I hope, that opinion is shared by few Representatives 
on this floor. I am not to be led into an argument based upon the suppo- 
sition that such is the opinion and purpose of a large portion of the mem- 
bers of this House. I will merely protest against and denounce it; I shall 
assume that it is not, and in the few remarks which I shall submit, I will 
undertake to confine myself to the legitimate subject before the House, and 
discuss the confiscation bills reported by the select committee of seven. 

I cannot concur in the opinion expressed by many gentlemen for whom 
I entertain great respect, and whose legal opinions I have been taught to 
consider correct, that there is in the Constitution of the United States no 
inhibition on Congress to forfeit the estates of persons who have been guil- 
ty of the crime of treason and thereof convicted and attainted. I approach 
this subject with much diffidence. I do not profess to be so skilled and 
learned in intricate constitutional questions as many other members on this 
floor. I am a plain, bluot, man, and in that spirit approach every subject 
which I undertake to discuss. But I think there are great leading provi- ■ 
sons of the Constitution of the United States so plain in their import that 
a wayfaring man, though a fool, cannot err in their construction and true 
interpretation. I consider that provision which applies to the subject of 
forfeiture for treason one of these. Unlike the gentleman from Missouri, 
[Mr. NOELL,] I have been taught to believe that the crime of treason is 
defined in the Constitution of the United States, and that it is defined so 
clearly and distinctly that no man can misconceive and misunderstand it. 
I have been taught that it consists " in levying war against the United 
States, and in adhering to their enemies, giving them aid and comfort." I 
have also been taught that the Constitution plainly and unequivocally pro- 
hibits the forfeiture of the property of an attainted traitor, except during 
his lifetime. This is the view in which I have been educated. It is, I 
think, the view of this subject entertained and expressed by the framers of 
the Constitution. 

The crime of treason is distinctly defined, and, as has been frequently 
said, no punishment is prescribed for it in the Constitution. That is left 
for the action of Congress. You are told by the Constitution what treason 
is, but you are not told which shall be its punishment. In that lies the 
discretion of Congress. You can declare by your law that the traitor shall 
suflPer death ; that he shall be imprisoned for life or a tena of years. You 
can decree by your law that he shall be banished from the country, and 
deprived of the protection of the Government he has outraged and at- 
tempted to subvert. You can do all this ; but by the pl^ain provision of 
the Constitution, when you approach his property and attempt to punish 
him by confiscating it, you are expressly forbidden to impose the penalty 
of forfeiture, except during the life of the person attainted. This prohibi- 
tion, emphatically expressed in the Constitution, applies to the crime of 
treason by whatever name it may be called. Can you call it murder, and 
then, as a consequence of conviction and judgment, decree that the estate 
of the muiderer shall be forfeited forever? I apprehend not. This crime 
is so distinctly described in the Constitution of the United States that when 
it is committed, call it by any name you please, it is still the crime of trea- 
son. You cannot say it is the simple oflPense of rebellion against the Gov- 
ernment of the United States if the act comes within the constitutional 
definition of treason. You cannot ignore the crime of treason by calling 
the act rebellion. 

If you call an act rebellion, or resistance to the laws of the United 



;3 

States, and punish it by fine, or confiscation, or forfeiture, when you 
analyze it and find that it consists in "levyinsr war against the United 
States, adhering to their enemies, giving thera aid and comfort," you are 
forced to the conclusion that whatever may be the name given the act, the 
crime is treason, and you are at once confronted and controlled in your ef- 
fort to punish it by all the provisions and limitations of the Constitution 
concerning treason. No attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person attainted. 

This may be an old-fashioned view of the subject. It may not suit the 
new-fangled notions which of late prevail in this country, but it is my con- 
viction, as solemnly and as fixedly settled in my mind as any great truth 
inculcated by the fathers of the Republic, and from which I cannot be in- 
duced to wander and depart. 

I am opposed to the bills reported by the special committee, because • 
this great constitutional fact, limitation, and inhibition, is overlooked and 
disregarded by them, and because I cannot see anywhere in the bills the 
"slightest respect to that constitutional limitation of our power. 

Every forfeiture decreed by this bill, all the confiscation — if you choose 
to call it by that name — provided for in it, is so provided because the 
party whose property is to be confiscated has been guilty of the crime of 
treason against the Government of the United States, and the provisions 
of this bill are that such property shall be seized by the Government of 
the United States and sold, and the proceeds put into the Treasury of the 
United States, as the property of the Government, in fee simple and for- 
ever. 

I know, Mr. Speaker, an eS"ort has been made by many ingenious, if not 
learned men, to evade this limitation and restriction by saying you do not 
attaint the individual guilty of this crime, that you do not pursue the 
person who has perpetrated it, that you leave him to go at large, institute 
no trial, do not bring him to judgment and conviction, but institute what 
gentlemen call a proceeding in rem against his property. It is gravely 
argued that by doing this and letting the off"ender go at large, you have 
the right to attach his property and forfeit it for the crime of treason, when 
you would not have that right if you pursued the party to conviction and 
attainder. I never can be brought to sanction any such evasion of the Con- 
stitution of the United States as this. I can never, from the learning I 
have had instilled into me in relation to the meaning of this very instru- 
ment, be brought to sanction a proceeding which, ignoring the trial and 
personal punishment of a party guilty of an ofi'ence, jumps over the pro- 
eeding against him, and takes hold of his property, so that you can punish 
im through that, and that alone. One of the greatest bulwarks of that 
Constitution, if not the greatest, is the clause in which is incorporated that 
provision of the Magna Charta, that no man shall be deprived of his life, 
liberty, or property, except by due process of law. 

Is this great provision regarded in these proceedings in rem? Why is 
the party punished by the forfeiture of his property « Because he is guilty 
of treason, or, as the learned gentleman from Massachusetts [Mr. Eliot] 
calls it, rebellion. He is punished by having his property taken from him, 
because he has been guilty of rebellion against the Government of the 
United States ; that is, bearing arms and levying war against the Govern- 
ment of the United States. It is not rebellion, sir, it is treason ; the Con- 
stitution compels you to call it treason ; it is so necessarily. But, says he, 
and say others, we can ignore the crime ; we can let the ofiiender go un- 



i 



punished in his person ; we can disregard the necessity for his convictioif 
of crime, and, by this proceeding in rem, by seizing his property, punish 
him for an offence of which he has never been judicially found guilty. 
You say that it is proper to punish him for treason, or for rebellion, if you 
choose, and you are guilty of the enormous and outrageous wrong of pun- 
ishing a rrran, by depriving him of all his property, before you have found 
him guilty in a court of justice of the crime for which you punish him. 
That, I suppose, in the the opinion of these gentlemen, is the "due pro- 
cess of law" contemplated by the Constitution of the United States. If 
it be, I have greatly misconceived that instrument, and the rights secured 
to us by it. 

Now, sir, I have alwc^ys heard that one of the most infanous and dam- 
nable things that could be done. was to hang a man and then try him for 
the oftence for which you hang him. Is there any justice in that? But 
the enormity of such a proceeding is excelled by that of the measures 
whi<j}i the distinguished chairman of the committee on confiscation pro- 
poses to this House; for in this bill he proposes to take.a man's property 
and forfeit it to the Government without first trying Lim and proving him 
guilty of the crime for which he is thus punished, and he is never to be 
afforded a trial for the offence. The gentleman from Massachusetts and 
my distinguished friend from Missouri [Mr. Noell] say this is the " due 
process of law," If it be, it is such a law as could only be enacted by the 
vilest despot that ever reigned on the face of God's earth. Our fathers 
knew nothing of a proceeding of this sort. They were not in the habit of 
resorting to this hocus pocus, this ground and lofty tumbling, this presti- 
digitation, for the purpose of getting at the means of punishing a citizen 
for a crime of which he has never been convicted. The usual practice 
was — and God grant that we may get back again to that old custom — to 
arraign him, to confront him with his accuser and witnesses, try him, find 
bim guilty of the. offence, and then punish him in his person or in his 
pocket, or both. The sooner we come back to that old practice, the sooner 
we acknowledge by our legislation in this Hall the true doctrine and the 
true teaching of the Constitution of the United States, the sooner will we 
become the respected body which the Congress of the Uuite<l States ought 
to be in the estimation of the people of this country and of the world. 

Mr. Speaker, it was not my intention to have pursued this branch of 
the subject even so far as this. I am candid and free to admit that, in 
the present juncture of public affairs, with great and imminent dangers 
impending over and surrounding us, I deem it inexpedient to adopt any 
act of confiscation or forfeiture of the estates of rebels ergaged in this 
wicked and unprovoked rebellion. I, sir, have no sympathy with that re- 
bellion. 

Mr. Bingham. Will the gentleman allow me to make an inquiry of 
him? 

Mr. Mallory. I would rather that the gentleman would allow me to 
go on with my remarks without interruption. 

Mr. Bingham. I have no desire to interrupt the line of fh gentleman's 
remarks. I simply wanted to make an inquiry for my own information. 

Mr. Mallory. I will hear the gentleman with a great deal of pleasure. 

Mr. Bingham. I desire to inquire of the gentleman whether he has 
ever seen in any commentary upon the Constitution, or in anything con- 
nected with the debates in the national convention, or in any of the stat- 



West, Eee. Hist. Soo. 



tutes, any intimation that tbe word "forfeiture" iu the Constitution is ne- 
cessarily limited to estates? 

Mr. Mallory. Mr. Speaker, in the investigation of this subject, when 
I found that the Constitution of the United States limited our powers in 
punishing the crime of treason, so far as the property of the person was 
concerned, to forfeiture during the life of the party, I inquired what was 
meant by " forfeiture." I found, on searching the English law, that for- 
feiture means taking (as a punishment for crime) by the king or Govern- 
ment any property tliat a man owns, and I suppose that the word forfeit- 
ure in th* Constitution meant and was intended to mean nothing else; 
that it applied to property in estate and could apply to nothing else. I 
did not suppose that it had entered into the imagination of any man to 
conceive that it had any reference to anything else than the estate of the 
person attainted. What else could it have been intended to mean ? Does 
it mean that the pfirty attainted of treason should not forfeit his life ex- 
cept during the life of the person so attainted ? 

Mr. Bingham. I am perfectly'willing to answer the gentleman's ques- 
tion if he desires me to do so. 

Mr. Mallokv. I will hear the gentleman with pleasure. 
Mr. Bingham. I undertake to say that a careful examination of the 
original draft of the Cimstitution'will lead the gentleman himself to the 
conclusion that the terms " corruption of blood" and "forfeiture," as used 
in that Constitution, are convertible terms, and that the word " estate" is 
neither expressed nor implied in that connection. 

Mr. Mallory. Mr. Speaker, I have looked in the books, not perhaps 
to the same extent, not perhaps with the same research, not perhaps with 
the same learning and natui'al acumen as the gentleman, but I have 
looked at the books with some care in relation to this matter, and that 
examination has led my mind to the conclusion that corruption of blood 
and forfeiture were two ditferent things. That is my undeistanding. I 
may be very much in error. If I am, I will most cheerfully stand cor- 
rected by any learned gentleman upon this floor. I believe that that is 
the common law. I understand that is the interpretation, not only of 
common lawyers, but even of uncommon lawyers. 

Mr. Bingham. Will the gentleman allow me to inquire what the term 
" corruption of blood" means, if it ever had any significance at all except 
the forfeiture of one right or another? 

Mr. Mallory. The words "corruption of blood?" 
Mr. Bingham. Yes, sir. 

Mr. Mallory. I have always understood that by " corruption of blood," 
which is the result of attainder, all power of transmitting through the 
blood any estate or inheritance was cut ofl'; that inheritance could not 
be derived by his descendents through one whose blood was corrupted by 
attaint of treason. This is my understanding of the English law. 

Mr. Bingham. I would inquire if that is not the forfeiture of a right 
that pertains to the citizen ? _ , 

Mr. Mallory. Unquestionably; the right of inheritance pertains to 
all citizens, and that right is forfeited and lost by the descendants and 
heirs of the person whose blood is corrupted, and not by the criminal. It 
is no loss on his part. It was this corruption of the blood and forfeiture 
which were worked by attainder of treason by the laws of England, that 
the provision of our Constitution, on which I have been commenting, was 
intended to prohibit. 



Mr. Speaker, I wish to proceed, in the discussion of this question, to 
other topics. I wish to review the policy of these measures, and the scope 
and purpose of those who are its advocates, or at least of a large number 
of those who are its advocates upon this floor. The learned gentleman 
from Massachusetts, (Mr. Eliot,) the chairman of the committee on con- 
fiscation, has reported to this House two bills upon the subject. One of 
them, as he thinks, entirely ignores the subject of slavery; it makes no 
provision in relation to slaves eo nomine] it simply pi'ovides that all the 
property of certain classes, named in the bill, shall be forfeited to the Gov- 
ernment of the United States, because of the coramissiou by thera of the 
crime of rebellion, or, as I call it, treason. 

Mr. Thomas, of Massachusetts. Will the gentleman from Kentucky 
allow me to interrupt him? 

Mr. Mallory. Certainly. 

Mr. Thomas, of Massachusetts. I be^ leave to call the attention of the 
gentleman from Kentucky to the fact that this bill proposes to confiscate 
the property of thousands who have never committed any crime. 

Mr. Mallory. I am coming to that, sir. That was what I was about 
to attempt to show. I was about to remark that the first portion of the 
bill confined its operation to the classes I have spoken of. The second, or 
some other section of the bill, provides' that after the President of the 
United States has issued his proclamation to the inhabitants of a rebellious 
State, ordering them to lay down their arfis and submit to the Govern- 
ment and laws of the Union, the property of every man who does not 
obey that proclamation shall become forfeited to the Government of the 
United States. I contend, with my learned friend from Massachusetts, that 
this provision of the bill is sweeping and universal, and that, from the very 
necessities of the case, it embraces all men, of every degree of wealth and 
character. Do you tell me that if the President of the United States de- 
termines to issue his solemn proclamation (and he does issue his procla- 
tion very solemnly) ordering the people of Alabama at the present time to 
lay down their arras under the penalty not only of losing their lives if 
they persevere in their rebellion, but also of losing their property, that 
proclamation can ever be expected to have any eflect within the limits of 
that State? Do you not know that a power hostile to the Government of 
the United States has control and authority within its limits? Do you be- 
lieve that by any agency that you or the [^resident can devise, this procla- 
mation can ever find its way into the State of Alabama? And if you were 
so lucky as to penetrate the bristling lines of the enemy, and to cause the 
proclamation to be read at every court-house and cross-road in the State 
of Alabama, do you believe that even the loyal men, those who have re- 
luctantly and unwillingly engaged in this rebellion, those who wouhl wil- 
lingly lay down their arms (as I believe hundreds in that State would) and 
aid the Government of the United States in assetting the supiemacyof 
the laws and of the Constitution, do you believe that one of those men 
has the power to obey that proclamation ? History tells us of a lawgiver 
who hung up his laws so high that they could not be read, and"ytt re- 
quired thera to be obeyed. It seems to me that the provisions of this act 
assimilate, in their character of justice and mercy, to the conduct of that 
lawgiver. 

But, sir, this bill, as the gentleman from Massachusetls [Mr. Eliot] in- 
tended to show, is not restricted to other than slave property. I suggest 
to that distinguished gentleman, that by the provisions of the bill itself, 



. 7 

which forfeits all the property of those persons described iu it, slaves are 
included Ss property, as every other description of property is; that the 
eftect and result of his bill will be that slaves will be proceeded against in 
rem, as every other kind of property will be, and that if bis bill be honestly 
carried out, they will be conveyed to the shambles and sold by the agent 
of the Government of the United States at public auction, and the proceeds 
of the sale placed iu the Treasury of the United States, to help defray the 
expenses of the war. I am supposing that both his bills do not pass. I 
believe he is himself hopeless of the passage of the second bill, but thiuks 
he will get the first bill through. Each bill stands on its own merits. 
They are to be voted on separately ; and I am supposing what the effect 
of the policy will be if his bill in respect to slaves be rejected, and the bill 
I am discussing be passed. Suppose that those charged with the execu- 
tion of this act, those who conduct these proceedings in rem, should decide 
that slaves are property, they will be obliged, if they deem the law consti- 
tutional, to Older their sale as they do that of other property. But if they 
concur in the opinion of the distinguished gentleman from Massachusetts, 
that there can be no property in man ; that a slave is a person, not a chat- 
tel ; that he is not one in whom property can be held, then how will it 
be ? If he be not property, he is a person responsible for his actions to his 
God, his country, and the law. He can commit the crime of treason as 
much as any other individual can commit it. If he has been employed by 
the rebels; if he has been made to aid I'ebellion ; to further its objects or 
purposes in any way that may be called levying war against the United 
States, or giving aid and co!nfort to the enemy, then he is guilty of the 
crime of treason against the United States, and can be arraigned, tried, 
convicted and executed for it. This view of the case cannot be met by 
the assertion that he acted under duress, that he was obliged to obey his 
master, and that by the laws of Alabama or any other southern State, if 
his master ordered him to commit a treasonable act, he could not lefuse 
obedience. He is prevented from setting up that defense, because a minor, 
who is supposed by law to be under the influence and control of his par- 
ents and guardian, as the slave is under the control and influence of his 
master, can commit the crime of treason, and may be punished for it. 

This view of the subject, Mr. Speaker, may not cause the geutlemaa 
from Massachusetts to have much objection to this bill, and may not enlist 
against it many ultra gentlemen on that side of the House. I know that 
this slavery question embarrasses them very much at this time ; and per- 
haps when my friend finds that he can, by a proceeding in rem or in any 
other way, have these slaves tried, convicted, and executed for treason, he 
might consider that the most expedious way of getting rid of slavery in 
the southern States. 

But, Mr. Speaker, I do not suppose that the gentleman from Massachu- 
setts contemplates anything of that sort. I believe, however, that there 
are a large number of gentlemen on that side of the House who advocate 
bills for the confiscation of the pioperty of rebels, not because they want 
to replenish the Treasury of the United Slates, not because they want to 
punish those engaged iu rebellion against the Government of the United 
States, not because of any enormous conception they have been induced to 
entertain of the crime of treason and the propriety of punishing it, but 
they have been induced to advocate these bills for the confiscation of the 
estates of rebels of the South in order to get rid of the institution of sla- 
very. I know that is their object. They have acknowledged it to me in 



8 

conversation. They have said to me repeatedly that were it not for the 
fact that they regarded this as a potent agency for emancipation, they 
would oppose confiscation. That is their avowed and only purpose. And 
in view of that fact, I want for a few moments to call the attention of those 
gentlemen to what they have said and pledged upon this subject. I ask 
them if they have not, in the Congress of the United States, pledged 
themselves to the belief that neither Congress or the free States have any 
power over the institution of slavery in the States where it exists by law? 

It is not necessary for me to go back to the various acts and resolutions 
that corroborate this assertion of mine. I allude to the fact, intendiog to 
insert in my printed remarks- the resolution offered by the distinguished 
gentleman from Ohio, now a Senator of the United States, in the last Con- 
gress — I mean Mr. John Sherman. And I will add that no speech was 
made during that Congres, no resolution was offered upon the subject of 
slavery at all, that did not reiterate and declare that neither Congress nor 
the free States of this Union had any right, either directly or indirectly, to 
interfere with slavery where it exists by law. And I tell you that, when I 
went home from the Congress of the United States, and engaged in that 
arduous struggle in which I went upon the stump for the Union and the 
Constitution, and against the rebellion in the southern States, there was no 
argument that I used in that canvass with more effect than the solemn 
pledge repeatedly made by members of the Republican party on the floor 
of this House that in no instance would they be induced, either through 
the agency of Congress or any other agency, to interfere with slavery in 
the States where it existed. 

The people of my State had been taught by demagogues, by advo- 
cates of the rebellion there, to believe that the northern States were the 
sworn enemies of their rights and their institutions. I bad been with 
you, I had mingled with you freely in social intercourse, and here in this 
Hall, and had everywhere received the assurance and was led to believe 
that in no instance would you be guilty of such inference. I assured the 
' people of Kentucky of that fact. I assured them that they and their in- 
stitutions and their rights were as sacred and as secure under the domi- 
nation of the Republican party as they had ever been. I told the people 
of Kentucky, as I was told by you in this House, in every speech made 
by Republicans upon this floor, and by every vote given by them, that 
all they intended to do upon the subject of slavery was to restrict it to 
where it existed, to prevent its further extension into the Territories of 
the United States, and that their intention in this respect was a matter 
of no moment to the people of the Southern States. I told them there 
was no Territory into which slavery could go if the unlimited rights were 
extended to go into any and every Territory in the possession of the 
United States. I told them that the Wilmot proviso had been enacted 
by God Almighty over all these Teri'itories by connecting with them a 
climate and soil such as to prohibit slavery as effectually as any enact- 
ment of Congress could do. I said to them that you were willing even 
not to go to the extent of inhibiting slavery by congressional enactment 
in any future Territory ; and when you, Mr. Speaker, in the last Congress 
brought forward bills for the organization lof eveiy foot of territory owned 
by the people of the United States, you sedulously ignored the Wilmot 
proviso in those bills, and you did it for a purpose. You did it that it 
might stand a pledge to the South that you would not in any way iuter- 
feie with the institution of slavery. 



Well, sir, wliat will my people think at this time of your conduct in 
the face of all these solemn promises and pledges ? I ask you that ques- 
tion in Bo spirit of passion ; I ask the question, God knows, with pro- 
found humiliation and sorrow. I asTi you, were you in the place of our 
people, how you would regard the legislation of the present Congress, how 
you would regard these confiscation bills, in the light of the most solemn 
pledges, protestations, and promises made in every speech and in every 
resolution of the last Congress ? Have you kept your sworn faith ? Have 
you observed your solemn pledges and promises ? 1 am not here to utter 
words of crimination or reflection. I am here to ask from my place upon 
this floor the simple question, if you were in our place, in the place of 
our people, and we in yours, would you regard us as having carried out 
the solemn pledges we had made? 

I know the gentleman from Ohio over the way [Mr. Bingham] will take 
this view of the question. The gentlemen was, perhaps, the only one on 
that side of the House who, in view of the great events that, in his mind, 
were speedily to be accomplished, stood out against the resolution of John 
Sherman, and pointed out to those men who advocated and passed it what 
v?ould be the consequence of its passage. I do not think the distinguished 
gentleman from Ohio voted for the resolution. 

Mr. Bingham. Will the gentleman allow me to make this remark? I 
thought that resolution was unfair to ourselves and unfair to the people of 
the South. I refused to vote for the resolution as it was introduced and 
passed on motion of the gentleman from New York, [Mr. Palmer.] I rose 
in my place to record my vote against it, but my colleague from the Mans- 
field district asked me to withhold my vote, saying that we would recon- 
sider the resolution and pass another in its place which would not be ob- 
jectionable. My colleague did introduce a substitute for the resolution, 
which was passed. When he introduced it, I asked him, as a matter of 
fairness, that I should be permitted to submit an amendment, to insert 
these four words: "in time of peace," but he refused, and the resolution 
was passed under the previous question. 

Mr. Mallory. Yes, sir ; and no other gentleman in the whole Republi- 
can party in the House took the same view as my distinguished friend from 
Ohio. That is precisely as I want the fact to go upon record. There was 
no other gentleman upon the floor of this House to support the gentleman 
from Ohio in the qualification that the declaration was only intended to be 
binding in time of peace. He asked them to except times of war, and they 
refused to do it, 

Mr. Wadsworth. And that vote w^as taken, I think, on the 9Lh day of 
Febi'uary, when seven States had already seceded from the Union. 

Mr. Mallory. I was aware of that fact, and I am obliged to my col- 
league for stating it. There was then not war, not actual war, but there 
was a state of hostilities, and there should have been war. If I had been 
President of the United States I would have used all the power of the 
Government to have crushed out this wicked rebellion. In my judgment, 
nothing less than treason in the Administration prevented the existence, 
at thai time, of an actual state of war. I am not sure, upon reflection, but 
war had actually commenced — I think the Star of the West had been fired 
on prior to that time by the rebels in Charleston harbor, and that was an 
act of war. 

Mr. Speaker, I have heard it charged over and over again upon the other 
side of the Hall that slavery is the cause of this war. To this charge I 



10 

beg here to enter my most solemn protest and denial. Slavery per se is 
not the cause of this war. I admit that this war has been brought on by 
the use made of the institution of slavery both at the South and at the 
North. T admit that this institution of slavery, this right of property in 
slaves, has been seized by fanatics and madmen, by scoundiels and villains 
both in the North and in the South, for the destruction of this Govern- 
ment, 

Sir, if it is true that the use made of the institution of slavery brought 
on this war, is that any reason why it should be exterminated ? If it be, 
is it not equally logical to argue that anything else that might have been 
the cause of this war — anything which, from the history of our country, 
we are forced to the conclusion could have been easily made the cause of 
rebellion or war — ought also to be abolished and extermiuiited? Do not 
you know that in 1832 South Carolina was upon the eve of occupying the 
position she occupies now — a position of rebellion against the Government 
of the United States — because of your tariff laws, and your restrictions 
upon free trade ? Why not, then, abolish the tariff system, and declare 
by solemn enactment that free trade shall be the permanent policy of this 
Government, because a tariff may be made the cause of a rebellion? In 
view of ihe fact that the State of the distinguished gentleman before me 
[Mr. Thomas, of Massachusetts,] was once on the eve of a rebellion against 
the Government of the United States, and did take some steps in that di- 
rection, because restrictions were laid upon commerce, why not say that 
commerce, because it may be the cause of a rebellion, shall be abolished ? 
Why not say, because we intend that the country shall be safe in the future, 
because we intend that nothing shall be left which can possibly be used 
hereafter to incite rebellion and treason, therefore we will abolish com- 
merce. 

Is not that argument as logical and as legitimate as that you must abol- 
ish slavery because slavery may be the cause of war ? [A voice. The 
whisky rebellion.] My friend says the whisky rebellion. Yes, sir, 
whisky has been the cause of rebellion, yet did you ever hear the enemies 
of that agent of mischief, as it is called by many, propose its destruc- 
tion for that cause ? I have never seen that that was assigned 
as a reason for its annihilation by the advocates of the " Maine 
law." I would not lay violent hands on whisky without constitu- 
tional wai'rant. I would say to the gentleman from New York, [Mr. Lan- 
sing,] and the gentleman from Massachusetts, [Mr. Eliot,] who have en- 
larged upon this subject, that even religion lias caused more wars and tur- 
moils than any one other subject, and, according to their theory, we ought, 
by solemn enactment, to abolish the Christian religion. 

Now, I am no propagandist of slavery; I am the owner of slaves, and 
the descendant of men who, as far back as I can trace them in America, 
were the owners of slaves, and I have made the declaration upon this floor 
that the condition of slavery is the very best condition in which you can 
place the Afiicau race. That is my deliberate conviction. I mean here 
in the United States of America, and in those States where slavery exists. 

I repeat, I am no slavery propaganist. I will never consent to impose 
slavery on an unwilliug people. I have said on a former occasion, and 
repeat here, that if I believed that slavery was inconsistent with the enjoy- 
ment of constitutional freedom, I would oppose slavery, and strive to per- 
suade the people of my State to '• wipe it out." But I said then, as I as- 
sert now, that there was no such incompatibility. Slavery existed at the 



11 

time the great principles of political liberty were established aud put into 
"practice by the adoption of the Constitution of the United States. Those 
great rights and slavery have coexisted ever since, and can continue to co- 
exists forever. The interference with it by Congress in States where it 
exisis is in violation and destructive of all those great rights. 

My conviction is that when these gentlemen shall have worked out their 
crusade, when they shall have accomplished their object by confiscation 
and emancipation, by all and every means, constitutional and unconstitu- 
tional, under the plea of necessity, they will find themselves in a predica- 
ment harder to extricate themselves from than that in which they now are. 
What do you intend to do with the slaves when they are freed ? Where 
will you give them a tarrying place? Do you expect to place them upon 
the lands of the South, where the climate is congenial to them, and where 
the soil yields those products in the cultivation of which their labor is pe- 
culiarly profitable 1 Do you intend to turn the three millions of slaves you 
may emancipate by this confiscation bill loose among the free whites of 
the southern States where they are now held in bondage ? Do you intend, 
by a coui'se like this, to inaugurate scenes like those which occurred in 
Hayti some years ago, a war of extermination between the white and black 
races, until, after scenes of carnage and horror, that race is swept away — 
utterly extirpated ? I hope not, for the sake of humanity. I hope there 
is not a man here so deaf to the calls of humanity, so indilferent to its 
claims, as to propose to inflict upon that race and the white race such a 
curse as that. 

What, then, do you propose to do with them ? Do you propose to let 
them go from the South, redeemed and regenerated as you say, into your 
free States of the North ? Ob, no, you contemplate no such condition as 
that for them. You exclude them, as you would a leper, from your States. 
You sSy they shall not come among you and participate in that liberty of 
which you boast so much, and which you say should be extended to every 
human being. You uiake the emancipated slave a pariah and an outcast. 
You do not allow him the privileges of a freeman, though you here con- 
tend for such privileges for every human being. Deliver me from all such 
philanthropy and benevolence as that. 

Mr. Bingham. Allow me to remind the gentleman that his remarks 
are too general ; that he does injustice to a majority of the free States of 
this Union. A large majority of them do not exclude any African trom 
them. 

Mr. Mallory, I ask the gentleman from Ohio if he is willing to throw 
open the doors of that great ^and noble State, that rich, fruitful, and pro- 
ductive State, to the three millions of slaves that may be liberated by these 
emancipation and confiscation bills? 

Mr. Bingham, Its doors are open now. 

Mr. WicKLiFFE. When did you repeal the law prohibiting them ? 

Mr. Bingham., As soon as we^tuined the Democratic party out of pow- 
er. [Laughter.] 

Mr. Ma'llgry. I know that the gentleman from Ohio does not intend 
that this exodus from the South shall find its way into the State of Ohio, 
as the Israelites did from Egypt into Palestine. No ; he has too much re- 
gard for that State, and is "too anxious that its fields shall be tilled by free 
white labor, and has too high a sense of the character and attributes of 
the Anglo-Saxon race, ever to bewilling that the blacks shall go there and 
be the competitors of the free white men of Ohio for the rewards of labor. 



12 

It may be that Ohio may now permit the entrauce of free negroes occa- 
sionally, butwheu that immense swarm of negroes, worse than the swarm 
of locusts that destroyed Egypt, commences to pour itself over into that 
State, the doors will be closed agaiust them, and he knows it. 

Mr. Bingham. I desire to say to the gentleman that I have no idea 
myself that under any po.ssible pressure I will ever consent that any man 
born upon the soil of this Republic, by any vote or word of mine, shall be 
excluded from the limits of any State, my own included. 

Mr. Malloky. I learn from that that the gentleman is an exception, 
for that is not the sentiment which prevails among those with whom he 
IS acting. ^ That is not the character of most of these philanthropists and 
humanitarians. 

Mr. Cox. I will say, too, that the sentiment of my colleague is not the 
sentiment of the people of Ohio ; and that as soon as they have a chance 
to restore the Democratic party they will keep out the blacks and prevent 
their competing with white labor. 

Mr. Bingham. I have no doubt of that ; but it will be a good while 
after this before they will have the power. 

Mr. Mallory. Having obtained from the gentleman from Ohio an ex- 
pression of humanity and benevolence for which I was not unprepared, let 
me go further, and ask him if he is willing to grant to this horde of blacks 
let loose fiom the Southern States, free ingress into Ohio, and bt^stow upon 
them all the rights of free white citizens, the rights and privileges and 
attributes of American freemen ? Will he allow them to be judgts, and 
members of the Legislature, and members of Congress and Senators from 
Ohio? 

Mr. Bingham. I am ready to answer that question. I answered it once 
before, I thought, to the satisfaction of the gentleman's venerable colleague 
(Mr. WicKLiFFE.) I said then, what every gentleman in this House knows 
right well, that political privileges, among which is the privilege of the 
elective franchise, belong exclusively and necessarily, under every form of 
government beneath the sun where it is exercised, to the acting majority, 
and whenever it accords with the popular sentiment and will, and not be- 
fore, they may be extended to either black citizens of the United States or 
any other class of citizens of the United States now excluded from the 
elective franchise. The fundamental law of the State of Ohio excludes 
the entertainment of that idea by the citizen, because it limits the elective 
franchise to white persons. I would prefer that the limitation had not been 
put there, knowing, as I do, that an overwhelming majority of the men 
who wrought out our independence scorned to put it into the first charter 
of the American Government, and, if I recollect aright, by the unanimous 
vote of the Representatives of eight States, to the vote of the Representa- 
tives of two of the smallest in the Confederacy. 

Mr. Mallory. I am obliged to the gentleman from Ohio for his answer. 
He says that this whole matter to which I have called his attention is to 
be disposed of by the majority of the white men. 

(Here the hammer fell.) 

Mr. Mallory. I hope I shall be permitted to proceed for a few minutes 
longer. 

Mr. Bingham. I hope so. 

Mr. Mallory. I am always willing to extend the same privilege to 
others, and have never objected to it. 



13 

The Speaker, If there is no objection, the gentleman will proceed. 

There was no objection. 

Mr. Mallory. In response to what has fallen from the lips of the gen- 
tleman from Ohio, inasmuch as the majority of the people of his State have 
control of this matter, and inasmuch as he is a great leader in that Slate, 
for which leadership he is doubtless qualified by his brilliant talents and 
his profound learning, I wish to ask him if he will use his great and pow- 
erful influence in Ohio so to guide and control that majority as to cause it 
in its legislative supremacy to concede to the poor liberated Africans these 
great blessings, the right to hold office in the State of Ohio under its con- 
stitution, and the right to vote. 

Mr. Bingham. The gentleman does me honor overmuch in assuming 
that I have any great amount of influence among men ; but in answer to 
his question I am very free to say that I do not undertake, according to my 
own judgment, to accomplish anything except in its right time and in its 
right season. I do claim, however, for myself, and I have never hesitated 
to say so, that it is the duty of the majority, in so far as may accord with 
their own sentiment of the public safety, to extend the elective franchise 
to all natural born citizens, and to all naturalized citizens who pay taxes, 
and are resident within the State ; and so the gentleman has my answer. 

Mr. Mallory. Well, his answer is oracular. 

Mr. Bingham. It may be oracular. 

Mr. Mallory. He told us without hesitation that he would throw open 
the doors of Ohio to the blacks; he told us that he had no hesitation in 
saying that the matter of admitting them to vote and hold oflice depended 
on the will of the majority; but when I eome to the other and more seri- 
ous question, we have the answer which the House has heard, and which I 
will not repeat. 

Mr. Bingham. The gentleman will pardon me for making this sugges- 
tion, that in what I have already said I do not recognize the right of the 
majority to expel any natural-born citizen from any rood of the Republic, 
or to deprive him of his right to live there, to work there, and to enjoy 
the fruits of his own toil ; but I do recognize the right of the majority, 
and I have so said before, to limit and restrain the exercise of pubtical 
privileges, among which is the right of sufl'rao-e. 

Mr. Mallory. Then I undei'sUnd that the gentleman will not say that 
he would advjse the majority to do at this time in relation to this matter. 
Now, I think it is very clear, whatever may be said by the gentleman, that 
this class of persons who are to be liberated in the slave States of the South 
by these laws are not to be admitted, in a great measure at least, into the 
free States of the North. Two thirds, if not three fourths or four fifths of 
those States, will exclude them. Now, when you set three millions of men 
free by your solenm enactment, you are bound by every consideration of 
justice and humanity to provide for them. If you do not do it, I scorn 
and detest your humanity. You must provide for these people if you free 
them. How will you do it ? Will you colonize them ? Have you, gen- 
tlemen, who know that the people of this country are staggering now un- 
der the enormous burdens imposed upon them by this terrible and neces- 
sary war, ever reflected upon the immense accumulation of taxation you 
will have to impose upon your constituents if you undertake to colonize 
and support negroes? If you liberate them, you are bound by every con- 
sideration of duty and common honesty to support and provide for them. 
It is a low estimate to say that it will cost $400 apiece to purchase territo- 



u 

Tj for thein, to transport them to it and colonize them there, and to sup- 
port them until they are able to support themselves. Thus you will im- 
pose H debt of $1,200,000,000 upon this already overburdened nation. — 
Are you willing to go home and face this responsibility before your people. 
Are you williugtogo home and say to those who sent you here, " we have 
taken three millions of happy and contented slaves, who were in the most 
proper position in which they could be placed by human laws, and confer- 
red upon them the great and inestimable blessing of freedom, and in order 
not to let these mis'eiable creatures starve and perish in our laud^ we liave 
determined to tax you to the amount of $1,200,000,000 to colonize and 
support them ?" I would not like to go to my people and tell them that 
I proposed to make them share in such a burden. I would not be welcomed 
with the declaiation, '• Well done, good and faithful servant;" they would 
repel me from their confidence and trust. 

Mr. Speaker, I heard the other day of distinguished philanthropist on 
this floor, one of those gentlemen who are strong advocates of these hu- 
manitarian schemes, one of those who believe in the equality of the white 
and black races, one of those who believe that one of the greatest boons 
ever extended to any people by any legislative body in the world was that 
tendered by the resolution which was passed a short time since m the off^er 
to those States which will emancipate their slaves of remuneration lor 
the loss and inconvenience incurred by that emancipation ; a friend ot muie 
asked him if he was willing to go home and tell his people that he would 
tax them to raise the money necessary to remunerate the slaveholders : 
"No, sir," said he, "I will do no such thing; we do not contemplate any 
such'thiug; in my country, when we are about to build a road, and it be- 
comes necessary to ascertain the damage a man may sustain from having 
the road run through his laud, the rule we adopt is to make a jury take 
an estjimate of the injury he will suffer by the road occupying his land 
and of tlie benefit he will derive from its passage through his land, and 
have the balance struck on either side. "I do not think," said he, " that 
there exists a man who would not say that a slave State was more bene- 
fitted than injured by the abolition of slavery, so that, instead ot paying 
them for it, they would have to pay us." 

My friend (Mr. Wadsworth) said some time ago that there were two 
kinds of faith, that good old honest faith which our fathers gave and ob- 
served and that other kind of faith which among the Romans became pro- 
verbial and infamous— Punic faith. I leave the House to say which kind 
would be practiced by those who hold this doctrine. 

Mr. Speaker, I will only add, in conclusion, that I believe that, without 
forced construction, ample power can be derived from the Constitution to 
put down this rebellion. I believe, sir, that if for any purposes you vio- 
late that instrument in its plain teachings; if you exercise powers that are 
clearii/ not granted, or usurp those that are certainly prohibited, you add 
incalculably to the difiiculty and complication of our position. I protest 
aaainst such usurpation. 1 do it not as the defender and advocate ot the 
rebel who has no right to set up claim under the Constitution and laws ot 
a Government against which he has impiously raised his arm tor its de- 
struction ; but 1 do it in my own right, and in defence of the rights ot my 
loyal constituents; and in defence of the rights of millions of loyal tree- 
ii4n throughout the Union, I demand that you reedeem the solemn pledge 
you made the country and the world, by which you recruited an army ot 
more than six hundred thousand men, not subjects, but/m, tntcUigent 



15 



volunteers, and secured the free offer of hundreds of millions of the na- 
tion's treasure. In that pledge you solemnly resolve : 

" That the present deplorable civil war has been forced upon the countrv bv thp 
disunionists of the Southern States', now in arms against the constitutionalGovern 
ment and in arms around the capital ; that in this national emergency Conaress' 
banishing all feelings of mere passion or resentment, will recollect only- its dutv to 
the whole country ; that this war is not waged on their part in any spirit of dd 
pression or for any purpose of conquest or subjugation, or purpose of overthrowirur 
or interfering with the rights or established institutions of those States but to de 
lend and maintain the suprcmac,/ of the Constitution, and to preserve the Union 
with all the dignity, equality, and rights of the several States unimpaired- and that 
as soon as these objects are accomplished the war ought to cease." 

Redeem this, and dark as the prospect now is, the bright mornino- of a 
glorius future, one of peace and concord, of prosperity and power such as 
no other nation has ever known, will speedily break on us. Disr'eo-ard it 
violate It, and we plunge into a fathomless abyss, from whose dark^deplhs 
no human vision can see the way of extrication. 



Towers, Printers. 



